HATHI KHAN vs MUHAMMAD HASHIM KHAN and 2 others
This criminal appeal was filed by the complainant against the acquittal of two respondents by the Additional Sessions Judge-I, Lakki Marwat, in a case of Qatl-e-Amd. The core legal question was whether the trial court's acquittal was based on a sound appreciation of evidence, specifically regarding the credibility of eye-witnesses and the consistency of the prosecution's narrative. The Peshawar High Court dismissed the appeal in limine, upholding the acquittal. The Court held that the prosecution's case suffered from fatal flaws: an inordinate and unexplained delay in lodging the First Information Report, which suggested deliberation and consultation; medical evidence that contradicted the eye-witnesses' account of the firing; and forensic reports indicating that all recovered bullet casings originated from a single weapon, casting doubt on the involvement of two accused. Furthermore, the Court noted the absence of corroborating evidence regarding the deceased's activities and the lack of recovery of any weapons or harvesting tools. The key principle laid down is that where prosecution evidence is inconsistent, delayed, and fails to corroborate the ocular account, the benefit of doubt must be extended to the accused.
- Does an inordinate and unexplained delay in lodging an FIR, when witnesses were present at the police station earlier, render the prosecution's case doubtful?
- Can an acquittal be sustained when medical evidence contradicts the ocular testimony of eye-witnesses regarding the nature of the firing?
- Does the recovery of empty casings from a single weapon, where multiple accused are charged, create a reasonable doubt regarding the identity of the assailant?
- Are eye-witnesses in a case involving a blood feud considered interested witnesses whose testimony requires independent corroboration?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' SYED YAHYA ZAHID GILANI, J.--- This appeal against acquittal has been filed by Hathi Khan complainant on whose report the Qatl-e-Amd of his nephew Muhammad Hassan was registered at Police Station Ghazni Khel, vide F.I.R. No,38, dated 3-4-2007, under sections 302/324/34, P.P.C., against both the respondents-acquitted accused Muhammad Hashim Khan and Bughdad Khan, who are brothers inter se, and were tried by learned Additional Sessions Judge-I, Lakki Marwat, who acquitted them vide impugned judgment delivered on 5-3-2009.
2. We have listened arguments of learned counsel for the complainant in motion. He contended that the occurrence was not only witnessed by Hathi Khan complainant who appeared in the trial Court as P.W.1, but also by his brother Shadi Khan who was also examined as P.W.9 and the ocular testimony furnished by them is supported by medical evidence and incriminating circumstantial evidence. Motive for the occurrence was blood feud. The occurrence took'place in daylight. Parties were known to each other. There is no question of misidentification or substitution of accused. All this overwhelming evidence was ignored and not appreciated according to the settled principles of criminal law and the governing doctrines of justice. He prayed that appeal may be admitted for hearing. We have gone through the record.
3. The occurrence took place at 9 a.m. And the report was lodged at police station, at 12-30 p.m., that is to say 3-1/2 hours after the occurrence, the distance between the place of occurrence and the police station being 6-7 kilometers. Although learned counsel for the complainant-appellant contended that sufficient time is normally consumed in arranging vehicle and shifting the dead body, but there is evidence on record which indicates inordinate delay. P.W.4 is the witness of prosecution who had identified the dead body in the police station. He stated that he learnt about the occurrence in village at 10 a.m. And rushed to police station where he reached within 15 minutes because their village is situated on the main road and vehicles are easily available. This statement provides evidence that police station could be reached within short time, but furthermore, his this part of statement is very important that when he reached the police station (at 10-15 a.m.), the complainant Hathi Khan and P.W. Shadi Khan were already present there. Here the question arises that by then why they had not got their report recorded and why the report was recorded long after that, at 12-30 p.m.? Satisfactory answers to these questions are not available and these proved facts reveal that the delay is inordinate and unexplained. So, the obvious conclusion would crop up that the intervening period of time was consumed in consultations and deliberations before charging somebody as accused, and further that the presence of witnesses on the spot, at the time of occurrence, thus, also becomes doubtful.
4. The medical evidence also does not corroborate the statements of eye-witnesses P.W.8 and P.W.9 because P.W.8 (complainant) has stated that each of the accused fired 5-6 shots but in the form of burst. He further clarified that it was one volley of fire whereafter there was no firing. In view of this explanation, the entrance wounds should have been either on the front of the deceased's body or on his back, but the medical evidence reveals two entrance wounds from frontal side and the remaining from backside.
5. Further, 9 empties of 7.62 bore were recovered from the spot which were sent to F.S.L. And it has been reported that they were fired from a single weapon. Meaning thereby that the assailant was one, and who was that out of the two nominated accused, it is in mystery. It further suggests that the witnesses had not seen the occurrence. In this background doubt arises and benefit of doubt shall go to both the accused.
6. Furthermore, it is an admitted fact that the deceased was absconder and in normal course of life he must be having some weapon which should have been recovered near his dead body or the witnesses should have stated that it was taken away by assailants. There is no evidence to this effect. Even if this fact is ignored, how it could be possible that according to the statements of eye- witnesses, the deceased in spite of being absconder, was going for harvesting. This theme of the prosecution story is not convincing and it further becomes doubtful because no harvesting instrument was being carried by the eye-witnesses and the deceased because nothing of that sort was recovered from the spot and shown to Investigating Officer. There is admitted blood feud between the parties. As such the eye-witnesses are interested witnesses and the proved inordinate delay in lodging report clearly hints that the accused were charged after consultations because the deceased being absconder was done to death in an unseen incident.
7. This being the whole case and its merits, success of the criminal appeal in hand is not visible. The benefit of doubt was rightly extended to accused in their acquittal. We do not find any force in the appeal which is dismissed in limine.